Teklezgi Gebrezgiabher v. Mike Kremer

MEMORANDUM

Petitioner Teklezgi Gebrezgiabher (“Ge-brezgiabher”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his second degree murder conviction. We affirm.

Although the state trial court erred in this case by instructing the jury that voluntary manslaughter requires intent to kill, see People v. Lasko, 23 Cal.4th 101 , 96 Cal.Rptr.2d 441 , 999 P.2d 666, 670-72 (2000) (voluntary manslaughter does not require intent to kill), the question we ask on habeas review is whether that error was constitutional in nature, Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010).

Constitutional error requires a showing that the flawed instruction “so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991) (citation omitted) (internal quotation marks omitted). The defective instruction “must be considered in the context of the instructions as a whole.” Id. 502 U.S. at 72-73 , 112 S.Ct. 475 (citation omitted).

Here, in addition to properly instructing the jury on second degree murder, the judge instructed that “[t]o establish that a killing is…